Newsletter.gif (2157 bytes)
A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 7, Nos. 49 & 50              Covering Cases Published in the Advance Sheets through Dec. 11, 2000

Highlights of this Issue:

Apprendi Watch - New Developments:

Dont forget to visit the "Apprendi Watch" section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. Included in that new section are summaries of and links to more than 85 cases interpreting Apprendi, as well as links to many articles and memoranda relating to Apprendi, and one source that contains links to more than 100 Apprendi briefs.

United States v. Jones, No. 97-1377 (10th Cir. 12/19/00) (Judge Lucero)

On June 29, 2000, three days after the Supreme Courts landmark decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court sent strong signals about the potential impact of Apprendi on drug convictions. It vacated the first of growing series of sentences imposed in drug cases because those sentences violated the "new rule" laid down in Apprendi - namely, that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

The sentence which the Supreme Court vacated that day was the 30-year sentence that had been imposed on Carless Jones and affirmed by the Tenth Circuit in Jones v. U.S., 194 F.3d 1178 (10th Cir. 1999) ("Carless Jones I"). (Since June 29, the Supreme Court has also vacated the sentences imposed in 22 additional drug cases - and more can be expected in the future. For a complete listing of the cases vacated to date, go to the Apprendic Watch section of our Web site.)

Jones had been convicted at trial of two counts of distribution of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C). The indictment did not allege the amount of cocaine base involved in either count; and Jones never challenged the sufficiency of the indictment itself - only the validity of his sentence. At sentencing, over Jones objection, the district court concluded that the amount of cocaine base involved in the two offenses was 165.5 grams; and that Jones should be sentenced under the provisions of 21 U.S.C. 841(b)(1)(A), which authorizes a maximum term of life imprisonment for offenses based on 50 grams or more of cocaine base. On direct appeal, relying on its pre-Apprendi precedent, the Tenth Circuit affirmed the 30-year sentence in Carless Jones I.

The defendant then appealed to the Supreme Court, and his appeal was pending when Apprendi was decided. In a summary order reported at 120 S.Ct. 2739, the Supreme Court vacated Jones sentence and remanded "for further consideration" in light of Apprendi. On remand, in the instant decision, the Tenth Circuit not only agreed that Jones 30-year sentence had to be vacated, it also held that a long string of its prior decisions no longer represented good law; and that they had been stripped of any precedential value by virtue of Apprendi. While the Court may have had no other options in light of the Supreme Courts remand, the Tenth Circuits decision was surprisingly firm and far-reaching.

For example, the Tenth Circuit firmly rejected the Governments contention that Jones sentence "should be reviewed only for plain error and does not require correction under that standard." The Court responded: "Because Jones argued both in his objections to the presentence report and at his sentencing hearing that his sentence exceeded the statutory maximum permitted by the indictment, he properly preserved the issue. Thus, by the governments admission, Jones erroneous thirty year sentence is not harmless and requires reversal."

The Court also rejected the Governments assertion that Jones had suffered no prejudice "because his thirty-year sentence falls well below the upper limit of forty years imprisonment (i.e., twenty years on each count to run consecutively) to which he was exposed in the indictment."

The Court responded: "[I]n Apprendi the Supreme Court reject[ed] a similar argument, stating that the relevant inquiry is the constitutionality of the sentence imposed on each individual count charged in the indictment, irrespective of the potential total sentence achievable through the imposition of valid consecutive sentences. . . . We are concerned with the legality of the sentences actually imposed, regardless of whether in the aggregate they are less severe than the sentences that could have been imposed. We will not permit our result to be guided by idle speculation as to the sentence that might be imposed by the district court on remand."

Beyond the Courts rejection of the Governments arguments, the instant decision is particularly significant because of its discussion of two additional topics. First, unlike the position taken by most of the courts that drug quantities were never considered to be an element of the crime - even pre-Guidlines, the Tenth Circuit   categorically stated, that "[p]rior to the inception of the federal Sentencing Guidelines, [Tenth Circuit precedent] established that drug quantity is an essential element of an offense under the enhanced penalty provisions of 841(b)(1) that must be alleged in the indictment" - a precedent that "was later held inapplicable to post-Sentencing Guideline cases" by subsequent Tenth Circuit decisions.

That statement raises an interesting question: Since there is no specific provision in the Guidelines that directs that the penalty provisions of 841(b)(1) be treated as sentencing factors rather than elements of the crime, why did the Tenth Circuit so suddenly and dramatically change its long-standing precedent? The explanation given in the decision where it changed that policy, U.S. v. Ware, 897 F.3d 1538 (10th Cir.1990), is far from convincing - although the Courts decision was certainly supportive of the Sentencing Commissions philosophy that "use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case." (U.S.S.G. 6A1.3, Commentary).

Secondly, the Court raised - and decided - an issue that the Apprendi court had reserved for another day - which adds an additional feature to the Apprendi rule. The Court stated: "Although expressly reserving the issue for another day, Apprendi strongly suggests that a given fact may not increase the penalty for a crime beyond the prescribed statutory maximum unless it has been alleged in the indictment." (Emphasis added).

After arguing that allowing a court to impose an enhanced penalty based on facts not alleged in the indictment "would impermissibly allow a defendant to be sentenced on a charge the grand jury never made against him", the Court stated: "We conclude the quantity of drugs involved in a violation of 841 is an essential element of the offense if that fact exposes the defendant to a heightened maximum sentence under 841(b)(1)(A) or (B). A district court may not impose a sentence in excess of the maximum set forth in 21 U.S.C. 841(b)(1)(C) unless the benchmark quantity of cocaine base for an enhanced penalty is alleged in the indictment in addition to being submitted to the jury and proven beyond a reasonable doubt."

The significance of this ruling is that, taken to its logical conclusion, it may provide an easier-to-meet alternative for appellate review by defendants who never raised Apprendi-type objections at sentencing. The general rule, of course, is that the failure to timely object to an error at trial or sentencing means that the defendant has not properly preserved the issue for appeal; and, in such cases, the appellate courts can intervene only if they find "plain error" - a difficult standard for any defendant. The defendant in the instant case did properly raise his Apprendi claim at sentencing, and thus he properly preserved the issue for appeal.

What was particularly noteworthy about the Court's decision, however, was its discussion of the significance of the defendants failure to challenge the sufficiency of his indictment. On that issue, the Tenth Circuit broadly suggested that a challenge based on a fatal defect in the indictment might have been grounds for reversal notwithstanding any failure to object to the district courts determination of drug quantity. It seemed to be saying that such an indictment would be fatally defective because it would mean that the court never had proper jurisdiction over the defendant. For example, the Court repeatedly emphasized that the imposition of an enhanced penalty "based on facts not alleged in the indictment would impermissibly allow a defendant to be sentenced on a charge the grand jury never made against him." Clearly, the general rule is that "indictments which are tardily challenged are liberally construed in favor of validity." (See, Echavarria-Olarte v. Reno, 35 F.3d 395, 397 (9th Cir. 1994)). However, a claim that an indictment was fatally defective because of a lack of proper jurisdiction is a totally different animal. If the indictment truly was fatally defective, then a strong argument can be made that the sentence was invalid because the court never had jurisdiction for anything beyond the most lenient statutory maximum available under 21 U.S.C. 841(b)(1).  Thus, regardless of whether the defendant raised and preserved his objection, and whether or not there was a finding of "plain error," the argument would be that the sentencing court never had jurisdiction to impose anything more than what Apprendi described as the "prescribed statutory maximum."

United States v. Kinter, No. No. 99-4621 (4th Cir. 12/19/00) (Judge Niemeyer)

This decision is noted for Judge Niemeyers candid and elucidating discussion of one of the most intriguing questions raised by the Supreme Courts decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) - namely, whether a defendant is entitled to have a jury decide, by proof beyond a reasonable doubt, every fact that has the real effect of increasing his sentence - and not just those facts which increase the penalty for his crime beyond the "prescribed statutory maximum."

In Apprendi, the Court ruled that "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Thus, put differently, the question addressed in this case was whether the term "prescribed statutory maximum" (as used by the Supreme Court in Apprendi) includes not just the statutory maximums for each crime that were set by Congress (in most cases long before the adoption of the Sentencing Guidelines), but also the maximum sentences set by the Guidelines (which may not be exceeded by the sentencing judges).

The defendant in this case, Paul Kinter, was indicted in 1988 on charges of conspiracy, in violation of 18 U.S.C. 371; bribery of a public official, in violation of 18 U.S.C. 201(b)(1); and payment of a gratuity to a public official, in violation of 18 U.S.C. 201(c)(1)(A). Following Kinter's guilty plea to the charges, the district court sentenced him to two concurrent 46-month terms of imprisonment on the bribery and conspiracy charges, and one concurrent 24-month term on the gratuity charge.

In calculating Kinter's sentences for the bribery and conspiracy counts, the district court enhanced Kinter's offense level by 14 levels based on its conclusion that he was responsible for some $9.5 million in benefits received by a third party as a result of the bribery scheme. In doing so, the court rejected Kinter's argument that it should have considered only the $340,000-to-$350,000 amount that Kinter personally received. Had the court accepted Kinter's position, it would have enhanced Kinter's offense level only 8 levels, exposing him to a sentencing range of 24-30 months imprisonment.

Although he did not raise the issue at trial, the Court did allow Kinter to file a supplemental brief on this direct appeal to raise his Apprendi argument. Kinters Apprendi argument was not that the enhancements he received pushed by sentence beyond the statutory maximum. It was acknowledged that the statutes under which Kinter pled guilty provided for longer statutory maximums than the 46 month sentence he received. Rather, Kinter argued that, under Apprendi, the district courts findings that led to his 14 level sentencing enhancement should have been submitted to a jury and proven beyond a reasonable doubt.

As the Court explained: "This contention essentially boils down to an argument that Apprendi renders much, if not all, of the current sentencing practices under the Sentencing Guidelines unconstitutional. Under Kinter's interpretation of Apprendi, any determination that has the real effect of increasing the maximum punishment to which a defendant is subject under the Sentencing Guidelines must be made by a jury and proven beyond a reasonable doubt."

The Court then continued: "The outcome of our case thus turns upon the definition of prescribed statutory maximum. (Emphasis added.) If the district court's factual findings did not result in an enhancement that exceeded that maximum, Apprendi is irrelevant. The government contends, and all of the Courts of Appeals to have considered the issue have thus far agreed, that to find the prescribed statutory maximum as contemplated in Apprendi, one need only look to the language of the statute criminalizing the offense, and no further. See U.S. v. Nealy, No. 99-15211, 2000 WL 1670932 (11th Cir. Nov. 7, 2000); U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000). If we followed that conclusion, we would have to reject Kinter's Apprendi claim, as the statutes at issue in this case -- 18 U.S.C. 201(b)(1) and 371 -- permit sentences of up to 15 and 5 years, respectively, which are well in excess of the 46-month concurrent sentences that Kinter received.

"Although we ultimately agree with the conclusion reached by these other Courts of Appeals, Kinter's argument is not without support, and the issue is sufficiently complex to warrant a brief discussion here. After all, the Apprendi dissenters expressed their fear that Apprendi would eventually stand for the principle that a defendant is entitled to have a jury decide, by proof beyond a reasonable doubt, every fact relevant to the determination of [his] sentence under a determinate-sentencing scheme -- a fear that the majority did little to allay. Apprendi, 120 S. Ct. at 2393-94 (O'Connor, J., dissenting). Moreover, claims such as Kinter's are indeed covered by the holding of Apprendi if the relevant prescribed statutory maximum is found in the Sentencing Guidelines rather than on the face of the relevant substantive statute.

"And though we reject it here, there is at least a colorable argument that the Sentencing Guidelines do provide that maximum. As Justice Thomas noted in his concurring opinion in Apprendi, the Guidelines "have the force and effect of laws".' Apprendi, 120 S. Ct. at 2380 n.11 (Thomas, J., concurring) (quoting Mistretta v. United States, 488 U.S. 361, 413 (1989) (Scalia, J., dissenting)). Moreover, because the maximums set by the Sentencing Guidelines may not be exceeded by sentencing judges, they are legally binding enactments in a manner nearly indistinguishable from congressionally enacted criminal statutes. If, for example, the district court in this case had sentenced Kinter to 59 months imprisonment on the bribery charge, we would have been required to vacate it because the court would have disregarded the maximum 57-month penalty for Kinter's crime prescribed by law (i.e., by the Sentencing Guidelines) -- even though the 59-month sentence would have been well below the 15-year maximum established by 18 U.S.C. 201(b)(1). . . . Moreover, the sentencing ranges promulgated by the Commission -- including their maximums and minimums -- are incorporated into the federal statutes by 18 U.S.C. 3553(b).

"If this analysis were correct, Apprendi would indeed work a watershed change upon the federal courts' current sentencing practices. District courts would no longer be permitted to make factual determinations that had the effect, in any real sense, of enhancing the defendant's sentence, and the Sentencing Guidelines would thus be rendered essentially useless, insidiously undermining the constitutional seal of approval bestowed upon the Sentencing Commission by the Supreme Court in Mistretta. Cf. Apprendi, 120 S. Ct. at 2391-95 (O'Connor, J., dissenting) (warning that the majority opinion would have precisely this effect). But cf. id. at 2400 (Breyer, J., dissenting) (noting that the majority had expressed "no constitutional objection" to the Guidelines).

"We conclude, however, that the Sentencing Guidelines pass muster under the Apprendi Court's conception of due process for reasons that closely parallel the principles animating the Mistretta Court's separation-of-powers-based decision. Mistretta made clear that the Sentencing Commission and its Sentencing Guidelines enjoy a unique constitutional status. See Apprendi, 120 S. Ct. at 2380 n.11 (Thomas, J., concurring). . . .

"Because Apprendi does not apply to a judge's exercise of sentencing discretion within a statutory range, the current practice of judicial factfinding under the Guidelines is not subject to the Apprendi requirements -- at least so long as that factfinding does not enhance a defendant's sentence beyond the maximum term specified in the substantive statute. . . . Because the sentencing enhancements at issue in this case did not extend Kinter's sentence beyond the maximums prescribed for his offenses by the substantive provisions of the United States Code, the government was not required to submit to a jury and prove beyond a reasonable doubt the facts relevant to those enhancements."

QUOTE OF THE WEEK - A Looming Apprendi Tsunami?

On January 3, 2001, The National Law Journal featured an article written by columnist David E. Rovella, entitled "A Looming Apprendi Tsunami." The article noted that, since Apprendi was decided, hundreds of appeals have been filed and scores of decisions handed down interpreting the ruling - but those cases may be only the tip of the iceberg and that the Apprendi ruling is certainly headed back to the Supreme Court where even more significant decisions may be in the offing. Among the more notable comments from the article were the following:

"Sentencing law expert Nancy King says that if the U.S. Supreme Court wanted to extend Apprendi to affect sentencing guidelines, it would have to overrule two key high court precedents. One is McMillan v. Pennsylvania, a 1986 decision affirming the legality of mandatory minimums and power of judges to consider sentencing factors under the preponderance standard . . . . The second case is Almendarez-Torres v. U.S., a 1998 case allowing judges to impose tougher sentences based on prior convictions not alleged in the original indictment.

"King says a reversal of McMillan would call into question mandatory minimum statutes, saying such a ruling is more likely because now you have Justice Thomas for the first time declaring that he believes that McMillan should be overruled.

"If the court were to overrule McMillan, King explains, the effect would be enormous. The guidelines are a super-complex set of mandatory minimums. Any mandatory sentence, any fact that carries a mandatory consequence for an offender's sentence, would reasonably be subject to jury determination beyond a reasonable doubt.

"But she warns that it is dangerous to make the leap ... that automatically the guidelines would be unconstitutional, adding that the use of downward departures under the guidelines protects them from being treated as mandatory minimums.

"What is more likely, King says, is that the court would overrule Almendarez-Torres, although such a decision would have a destructive effect since almost every state has statutes that trigger higher sentences based on the presence of ... another conviction. Such a decision would throw habitual offender and three strikes laws to the jury."


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:


This Week

Year to Date

Since 1996

Courts of Appeal




District Courts




Copyright 2001 Punch and Jurists, Ltd.